CITATION: Homelife/United Realty Inc. v. Saggu, 2016 ONSC 4787
COURT FILE NO.: CV-08-4779
DATE: July 29, 2016
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Homelife/United Reality Inc., Vision Mortgages Inc. and Parvinder Singh
AND:
Gursharan Singh Saggu also known as George Saggu, Manjit Saggu, 2147142 Ontario Corporation, Hargajan Saggu and Saggu Holdings Inc.
BEFORE: M.J.Donohue, J
COUNSEL: Pathik Baxi, for the Plaintiffs
Douglas Edward, for the Defendants
HEARD: In writing
E N D O R S E M E N T
Introduction
[1] The Defendants seek leave to appeal from the order of Barnes, J. dated February 16, 2016. In that order, the motion judge granted the Plaintiffs the right to amend the Statement of Claim by adding the spouses of the defendants George Saggu and Manjit Saggu as Defendants, in their capacities as Directors of 2147142 Ontario Corporation, and to amend the Statement of Claim.
[2] The Plaintiffs did not file any responding material on this leave to appeal motion.
Test for Leave to Appeal
[3] The test for granting leave to appeal under Rule 62.02(4) is well-settled. It is recognized that leave should not be easily granted and the test to be met is a very strict one. There are two possible branches upon which leave may be granted. Both branches involve a two-part test and, in each case, both aspects of the two-part test must be met before leave may be granted.
[4] Under Rule 62.02(4)(a), the moving party must establish that there is a conflicting decision of another judge or court in Ontario or elsewhere (but not a lower level court) and that it is, in the opinion of the judge hearing the motion, “desirable that leave to appeal be granted.” A “conflicting decision” must be with respect to a matter of principle, not merely a situation in which a different result was reached in respect of particular facts: Comtrade Petroleum Inc. v. 490300 Ontario Ltd., (1992) 1992 7405 (ON SC), 7 O.R. (3d) 542 (Div. Ct.).
[5] Under Rule 62.02(4)(b), the moving party must establish that there is reason to doubt the correctness of the order in question and that the proposed appeal involves matters of such importance that leave to appeal should be granted. It is not necessary that the judge granting leave be satisfied that the decision in question was actually wrong – that aspect of the test is satisfied if the judge granting leave finds that the correctness of the order is open to “very serious debate”: Nazari v. OTIP/RAEO Insurance Co., 2003 40868 (ON SC), [2003] O.J. No. 3442 (S.C.J.); Ash v. Lloyd’s Corp. (1992), 1992 7652 (ON SC), 8 O.R. (3d) 282 (Gen. Div.). In addition, the moving party must demonstrate matters of importance that go beyond the interests of the immediate parties and involve questions of general or public importance relevant to the development of the law and administration of justice: Rankin v. McLeod, Young, Weir Ltd. (1986), 1986 2749 (ON SC), 57 O.R. (2d) 569 (H.C.J.); Greslik v. Ontario Legal Aid Plan (1988), 1988 4842 (ON SCDC), 65 O.R. (2d) 110 (Div. Ct.).
Analysis
[6] The moving parties made no reference to the test above as to the basis on which they were seeking leave.
[7] The moving parties pointed to Rule 5.04(2), which allows the court to add a party on such terms as are just.
[8] They argue that there was a limitation issue, which should have prohibited the addition of these parties. They refer to the case of Wong v Adler (2004), 2004 8228 (ON SC), 70 O.R. (3rd) 460; [2004] O.J. No. 1575; [2004] 8228 (OSCJ); aff’d (2005), 2004 73251 (ON SCDC), 76 O.R. (3d) 237; [2005] O.J. NO. 1400, [2005] 73251 OSCJ—Div.Ct.). In that case, Master Dash exercised his discretion to refuse to allow the proposed defendants to be added as party defendants. The Divisional Court affirmed the exercise of discretion.
[9] The moving parties argue that the proposed amended statement of claim does not plead discoverability and failure to do so is fatal to a motion to amend to add a party after the limitation period.
[10] I find that the cases referred to state that the facts giving rise to the discoverability principle should be pleaded in the statement of claim.
[11] In the present case, Barnes, J. was alive to the issue of the limitation period and exercised his discretion, with reasons, to allow the parties to be added as he found the evidence regarding discoverability to be in dispute.
[12] There is no conflicting decision on a matter of principle to this decision.
[13] The moving parties have not set out why it is desirable that leave be granted. I note that the proposed defendants have other avenues open to them including a demand for particulars and a motion for summary judgement on the limitation defence.
[14] The moving parties have not established that there is reason to doubt the correctness of the decision rising to the level that it is “open to very serious debate”, nor have they shown that the matter involves matters of such importance that leave should be granted.
[15] Leave to appeal is denied.
M.J. Donohue, J.
Date:
CITATION: Homelife/United Realty Inc. v. Saggu, 2016 ONSC 4787
COURT FILE NO.: CV-08-4779
DATE: July 29, 2016
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Homelife/United Reality Inc., Vision Morgages Inc. and Parvinder Singh v. Gursharan Singh Saggu also known as George Saggu, Manhit Saggu, 2147142 Ontario Corporation, Hargajan Saggu and Saggu Holdings Inc.
BEFORE: M.J. Donohue J.
COUNSEL: Pathik Baxi, For The Plaintiffs
Douglas Edward, For The Defendants
ENDORSEMENT
M.J. DONOHUE J.
DATE: July 29, 2016